On June 7, the Federal Court released its decision in Delos Santos v. Canada (Citizenship and Immigration), 2010 FC 614. The applicant argued that it was a breach of procedural fairness that the same officer heard determined both the applicant’s humanitarian & compassionate (“H&C“) application as well as applicant’s Pre-Removal Risk Assessment (“PRRA“).
The Federal Court found that there was no inherent bias arising from the fact that the same officer dealt with both a H&C application and a PRRA application for the same individual.
This decision was based on the Federal Court of Appeal’s (the “FCA“) decision in Oshurova v. Canada (Minister of Citizenship and Immigration), 2006 FCA 301, where the FCA answered the following certified question in the negative:
Is there an appearance of bias, in this case, because the same officer decided the application for a visa exemption on humanitarian and compassionate grounds as well as the Pre-Removal Risk Assessment?
The FCA cited Monemi v. Canada (Solicitor General), 2004 FC 1648, where the Federal Court stated:
The main issue on this H & C application is also quite different from the one to be determined on a PRRA application under section 112. With respect to the H & C application, the decision- maker had to determine if Mr. Monemi would experience unusual and undeserved, or disproportionate hardship if he were to return to Iran to apply for a permanent resident visa. This concept encompasses much more than the narrow requirements relevant to a PRRA application, namely, those set out in sections 96 and 97 of IRPA. Not only does unusual, undeserved, or disproportionate hardship include non-risk elements but it also includes risk elements that may not qualify under sections 96 and 97, such as for example, discrimination that may not amount to persecution.
Thus, as the main issue on an H&C application – that being whether an applicant would experience unusual and undeserved hardship, is much broader than the narrow issue of a PRRA application, which analysis actual risk, there are two tests being performed, and no apprehension of bias and no prima facie notion that one decision will unjustly influence the other.
A lawyer trained to apply different tests reaching different conclusions to the same set of facts may find it obvious that the same person can hear the same set of facts and reach different conclusions. Many clients, however, view an officer’s rejection of their application as a personal thing, and will undoubtedly find this decision unreasonable.